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Dr. Özlem Döğerlioğlu Işıksungur Yaşar University Commercial Law Lecture Notes 2011-2012 Spring.

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Presentation on theme: "Dr. Özlem Döğerlioğlu Işıksungur Yaşar University Commercial Law Lecture Notes 2011-2012 Spring."— Presentation transcript:

1 Dr. Özlem Döğerlioğlu Işıksungur Yaşar University Commercial Law Lecture Notes Spring

2 Different definitions from the point of economy and law ECONOMY: Introduction of goods to the market + distribution (not production) Interchange of goods in consideration of goods or services LAW: Broad definition Interchange of goods and services + distibution +production

3 Shortly, it is a branch of law that covers commercial activities concerning production, interchange and consumption. In the public- private law distinction, it takes place in private law

4 Economic law: The main purpose is regulation and managementof economic life (not protection of indivuduals or groups that participate the economic activities) Searches whether the contract shall have affirmative results on the whole economy and the market conditions (not the equilibrium between rights and obligations of the parties)

5 There are four systems Subjective System (Merchant) Subjective System (Merchant) Objektive System (Commercial Transction) Objektive System (Commercial Transction) Modern System (Commercial Enterprise) Modern System (Commercial Enterprise) Mixed System Mixed System 5 Kaynak:Sami Karahan, Ticari İşletme Hukuku 2011

6 A. Historical Development B. Sources of Turkish Commercial Law C. Application of Turkish Commercial Law Sources

7 What are the commercial principles? Where we can find the commercial rules? Enumeration of the commercial rules that will apply to the commercial transactions and disputes

8 Commercial Provisions Trade Customs and Usages General Provisions Primary Sources Court Decisions Doctrine Complementary Sources

9 A.Commercial Provisions Provisions in the Commercial Code (whether it is related with commercial enterprise or not is not importance) Written special provisions in the other Codes concerning any transaction and activity related to commercial enterprise (Eg. Civil Code, Code of Obligations)

10 Unwritten commercial law rules. It is accepted that in the commercial life everybody must obey these rules On its own initiative application B. Trade Customs and Usages The elements of Trade Customs and Usages: Objective elements: Continuity Psychological elements: General Belief Legal elements: Sanction (legal)

11 Difference between commercial practice (ticarî teamül) & commercial customs and usage Elements: Objective element+ Pyschological element BUT no sanction(legal) QUESTION: To whom we can apply the commercial customs and usage? NTCC Article 2/3 commercial customs and usage are applicable to merchants commercial customs and usage are applicable to people who are not merchant on condition that they are known by them or they should be known by them Burden of proof belongs to claimant

12 C. General Provisions In other words noncommercial provisions of Civil Code and Code of Obligation IMPORTANT: Commercial Code is part and parcel of Turkish Civil Code (Article 1 of NTCC) Article 1 of Civil Code Application and sources of law The law must be applied in all cases which come within the letter or spirit of any of provisions. Where there exists no applicable provision of law, the judge shall decide according to customary law and, in default thereof, according to the rules that he would lay down if he himself had to act as legislator In rendering his decisions, the judge benefits from legal opinions and case law

13 A- Court Decisions: Application and interpretation of legal provisions Filling the gaps Local Court takes into consideration Court of Appeal Decisions, (as precedents concerning the same subjects) Unified decisions of Supreme courts are binding for judges.

14 B- Doctrine

15 Statutory provisionsContractsRegulatory provisions Commercial customs and usage General provisions Judges competence to act as legislator

16 Freedom to contract NTOC m (TOC 19-20)

17 A- Statutory provisions (Emredici hükümler) It is not important whether it is commercial or not, at first, statutory provisions will be applied. A provision is statutory When legislatior mentions in the provision that contracts contrary to provision concerned is forbidden (Article 232 of NTCC General partnership... Any contract contrary to this article is unvalid from the point of third parties) the language of the article uses words that shows necessity and certanity (NTCC Article 18 Merchants are obliged to ) Any article related to the validity of the legal transaction (Article 20 of NTCC) Any article concerning form requirement(Article 212 of NTCC- written form) Any article concerning public order IMPORTANT: Any article contrary to statutory provisions are

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